LTC 657-2019 Homelessness Legal Update-Recent Denial of Certiorari Review by U.S. Supreme Court in Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019), cert. denied, Boise v. Martin, 2019 U.S. LEXIS 7571M IA M I B E A C H
OFFICE OF THE CITY ATTORNEY
LTC No. 657-2019
LE T T E R TO CO M M IS SIO N
TO: Mayor Dan Gelber and Members of the City Commission
Rou Rau Aawa. cr Ator e,i l }:.l
DATE: December 18, 2019
SUBJECT: Homelessness Legal Update: Recent Denial of Certiorari Review by U.S.
Supreme Court in Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019),
cert. denied, Boise v. Martin, 2019 U.S. LEXIS 7571 (U.S., Dec. 16, 2019).
This memorandum is to advise the Mayor and City Commission of a recent decision by
the U.S. Supreme Court regarding the ability of local governments to regulate camping
and sleeping by homeless people in public. The Supreme Court on Monday declined to
hear an appeal in Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019), cert. denied,
Boise v. Martin, 2019 U.S. LEXIS 7571 (U.S., Dec. 16, 2019), a Ninth Circuit case
originating from Boise, Idaho, that invalidated the City of Boise's ordinance that made it
a crime to camp and sleep in public spaces.
The case stems from a lawsuit filed nearly a decade ago. A handful of people sued the
City of Boise for repeatedly ticketing them for violating an ordinance against sleeping
outside. In a decision last year, the Ninth Circuit said it was cruel and unusual
punishment in violation of the Eighth Amendment to enforce rules that stop homeless
people from camping in public places when the City has no shelter beds available to
house them. That means states across the Ninth Circuit can no longer enforce simi lar
statutes if they don't have enough shelter beds for homeless people sleeping outside.
The U.S. Supreme Court decision to let the Ninth Circuit opinion stand is a setback for
states and local governments in much of the Western United States that are grappling
with widespread homelessness by designing laws to regulate makeshift encampments
on sidewalks and parks.
The impact of the decision on the City of Miami Beach is, however, negligible, because
a central underpinning to the Boise decision was the fact that the City of Boise did not
have enough shelter beds to house its homeless population. While the City of Miami
Beach currently prohibits unauthorized camping in public places by anyone (including
the homeless), we do contract with multiple organizations to provide sufficient shelter
WVe are committed to providing excellent public service and salely to all who live, work, and play in our vibrant, tropical, historic community.
L e tt e r to C om m is si o n - S e a L e v e l R is e Li tig a tio n D is c u s s io n
D e c em b er 1 8, 2 0 1 9
P a g e 2
beds to house all of the current hom eless population living in our City.
T he Eleventh Circuit, w hich govern s Florida, has specifically upheld an anti-public
sleeping ordinance against an Eighth Am endm ent challenge in Joel v. City of Orlando,
232 F.3d 1353, 1362 (11th Cir. 2000). In Joel, the Eleventh Circuit affirm ed the grant of
sum m ary judgm ent in favor of the city on an Eighth Am endm ent claim challenging an
ordinance prohibiting "sleeping or otherw ise being in a tem porary shelter out-of-doors."
Id. at 1356. T he Eleventh Circuit concl uded that because there w as space available at
a local hom eless shelter that never reached m axim um capacity and never turn ed aw ay
an individual fo r lack of space or failure to pay the nightly fee, the ordinance did not
crim inalize the status of being hom eless. Id.
One judge in the Southern District of Florida, in a w idely cited case, struck dow n an anti-
public sleeping ordinance as a violation of the Eighth Am endm ent. See Pottinger v. City
of Miami, 810 F. S upp. 1551, 1565 (S.O. Fla. 1992) (holding that city practice of
arresting hom eless persons fo r perform ing such activities as sleeping, standing, and
congregating in public places violated the Eighth Am endm ent). In Pottinger, the court
observ ed that,
[R]esisting the need to eat, sleep, or engage in other life sustaining
activities is im possible. Avoiding public places w hen engaging in this
otherw ise innocent conduct is also im possible .... As long as the hom eless
plaintiffs do not have a single place w here they can lawf ully be, the
challenged ordinances, as applied to them , effectively punish them for
som ething fo r w hich they m ay not be convicted under the [E]ighth
[A ]men dm ent - sleeping , eating and other innocent conduct.
Id. How ever, the part ies' consent decree resulting from the Pottinger decision w as
recently term inated by the court , finding that the prim ary purpose of the consent decree,
"to stop the arrests of the hom eless fo r being hom eless, has been achieved." Pottinger
v. City of Miami, 359 F. Supp. 3d 1177, 1201 (S.D. Fla. 2019). That order is currently
on appeal. T he City Attorn ey's O ffi ce previously issued an L TC relevant to that decision,
w hich is again attached here as Exhibit A.
T he City Attorn ey's O ffice w ill continue to m onitor developm ents in this area of the law
and advise the M ayor and Com m ission on further developm ents as appropriate.
RJA:R R /m m m
F:IATTOIROSR\RFR CMB\HOMELESS ISSUES\L2019-12-17 L TC - Homelessness Legal Update - U.S. Supreme Court Decision in Martin v. City of Boise (2).d0cx
We are com mitted to providing excellen t public service and sale ly to all wh o live, work, and play in our vibrant, tropical, historic community.
MIAMI BEACH
OFFICE OF THE CITY ATTORNEY
117-2019 LETTER TO COMMISSION
LTC No.
TO:
FROM:
DATE:
Mayor Dan Gelber
Members of the City Commission
City Manager Jimmy L. Morales
cy Atome»y Rata. Aouwg }.S
March 5, 2019
SUBJECT: Analysis Regarding Recent U.S. District Court Memorandum Opinion
In Michael Pottinger, Peter Carter, and Berry Young v. City of Miami
The purpose of this Letter to Commission is to provide the Mayor and City Commission with an
analysis of the Memorandum Opinion issued in the United States District Court for the Southern
District of Florida on February 15, 2019 in Michael Pottinger, Peter Carter, and Berry Young v.
City of Miami. A copy of the entire Memorandum Opinion is attached as Exhibit "A."
BACKGROUND
In 1988, Michael A. Pottinger, as representative of a class of homeless persons, filed a lawsuit
against the City of Miami pursuant to 42 U.S.C. § 1983, alleging that the City of Miami police
department had "a custom, practice and policy of arresting, harassing and otherwise interfering
with homeless people for engaging in basic activities of daily life ... in the public places where they
are forced to live." Pottinger v. City of Miami, 810 F. Supp. 1551, 1554 (S.D. Fla. 1992). Mr.
Pottinger sought an injunction against the City of Miami to prohibit its police officers from arresting
homeless persons who were engaging in "life-sustaining conduct" in public, and from seizing and
destroying their personal property.
The original District Court presiding over the case, Judge C. Clyde Atkins, found the City of Miami
liable for unconstitutionally arresting homeless persons for engaging in life-sustaining activities
being conducted in public. Furthermore, Judge Atkins found that the City of Miami utilized the
arrest process for the ulterior purpose of driving homeless persons from public areas and, as
such, granted Mr. Pottinger's request for injunctive relief, which prohibited City of Miami police
officers from arresting homeless persons for life-sustaining activities in two (2) safe zones that he
established in downtown Miami. Subsequently, the City of Miami twice appealed the decisions of
Judge Atkins to the United States Court of Appeals for the Eleventh Circuit, which ultimately
instructed the parties to mediate in an attempt to resolve their dispute.
THE POTTINGER SETTLEMENT AGREEMENT
In 1998, after almost two (2) years of negotiations, the parties entered into a settlement agreement
(hereinafter identified as the "Settlement Agreement"), which was approved by the Honorable
Federico A. Moreno, United States District Judge, but created a different remedy than that which
Exhibit "A"
Letter to Commission Re: Memorandum Opinion in Michael Pottinger et al. v. City of Miami
March 5, 2019
Page 2 of 5
Honorable Federico A. Moreno, United States District Judge, but created a different remedy
than that which Judge Atkins had originally fashioned and ordered. The Settlement Agreement
established a protocol regarding Miami police interactions with homeless persons in order to
further protect the rights of the homeless, by limiting the circumstances under which arrests
could be made, and included provisions for the handling of their personal property. Further, the
Settlement Agreement incorporated and defined the term "life sustaining conduct" as those
misdemeanor offenses which a homeless individual commits by the mere fact that he or she is
without shelter, and must conduct those life sustaining activities, such as eating, sleeping,
sitting, congregating, or walking in public.
Moreover, the Settlement Agreement prohibited Miami police officers from arresting a homeless
person for a "life sustaining conduct" misdemeanor unless the police officer first offered an
"available shelter" to the homeless person, and the homeless person refused to accept the
shelter, or if the sole "available shelter" at the time was a shelter from which the homeless
person was barred because of his or her own purposeful misconduct, criminal or otherwise,
which occurred at that shelter.
Specifically, the Settlement Agreement identified the aforementioned "life sustaining conduct"
misdemeanors as:
a. Being in a park after hours;
b. Public nudity where necessary to carry on the daily necessities of life, such as
bathing or responding to a call of nature;
c. Fires in parks;
d. Obstructing passage on sidewalks;
e. Vehicles, living or sleeping in;
f. Loitering in restrooms;
g. Littering;
h. Camping in parks;
i. Use of facilities for other than intended purpose;
j. Temporary structures in parks; and
k. Trespass on public property other than a structure or conveyance (such as a motor
vehicle, vessel, railroad car, etc.).
However, it is important to note that nothing contained within the meaning of "life sustaining
conduct" prevented arrest for a lewd, lascivious or indecent assault or act upon or in the
pre se n ce of a pe rso n pu rsu a n t to F lo rid a S tatute 80 0 .0 4 , prov id e d th e la w e n fo rce m e n t offi c e r
had probable cause to make such an arrest. Likewise, if a law enforcement officer had probable
cause to believe that a homeless person was committing, or had committed, a felony offense,
the law enforcement officer could detain or arrest the homeless person irrespective of whether
there was an available shelter.
Additionally, the Settlement Agreement provided protection for the personal property of
homeless individuals. The Miami Police Department and all other City of Miami departments,
including Parks and Recreation and Solid Waste, had to follow their own internal procedures for
taking custody of homeless persons' personal property, and were prohibited from destroying
any personal property readily recognizable as belonging to a homeless person, except as
permitted by law and in accordance with their standard operating procedure, or unless the
property was contaminated or otherwise a health hazard.
Letter to Commission Re: Memorandum Opinion in Michael Pottinger et al. v. City of Miami
March 5, 2019
Page 3 of 5
ADDENDUM TO THE POTTINGER SETTLEMENT AGREEMENT
The Settlement Agreement was modified by an addendum, which was ratified and approved by
Judge Moreno in 2014. The most significant changes to the Settlement Agreement included the
following:
a. Registered sex offenders or sexual predators, pursuant to certain Florida statutes,
were no longer afforded some of the protections of the Settlement Agreement;
b. A facility was now considered a shelter if it could accommodate the homeless for a
minimum of twenty-four (24) hours, and had mats at least three (3) inches thick for
the homeless to sleep on;
c. Starting a fire in a park no longer constituted "life sustaining conduct";
d. Temporary structures in parks were no longer permitted;
e. If public nudity was done intentionally and in plain view of others, the law
enforcement officer could arrest the homeless person regardless of whether there
was available shelter, and in no circumstance was public nudity allowed for a call of
nature if there existed an open public restroom within one-quarter of a mile (1,320
feet) of the homeless person performing a call of nature;
f. After one (1) warning, no person could lie on the sidewalk in a perpendicular fashion
blocking the sidewalk or obstructing the sidewalk in such a way as to endanger other
persons by requiring them to walk into a street where, but for the obstruction, such
persons would otherwise have been able to safely walk on the sidewalk;
g. Littering within three-hundred (300) feet of a usable trash receptacle was a citable
offense if a law enforcement officer warned the homeless person to stop and he/she
refused, regardless of whether there was available shelter; and
h. Arrests could now be made for "life sustaining conduct" misdemeanors if such
conduct caused imminent threat of physical injury to the homeless person or another
person, and if the homeless person continued such conduct after being warned by a
law enforcement officer to stop, regardless of whether there was available shelter.
TERMINATION OF THE POTTINGER SETTLEMENT AGREEMENT
On February 15, 2019, pursuant to a motion by the City of Miami, and despite opposition from
the Plaintiffs, Judge Moreno determined that Federal Court oversight should come to an end,
and thus terminated the Settlement Agreement. Judge Moreno found that, over the past twenty
(20) years, the City of Miami had substantially complied with the Pottinger Settlement
Agreement, and much had changed in how the City of Miami treats its homeless population.
Additionally, Judge Moreno noted that the termination of the Settlement Agreement
notwithstanding, any future abuse of the homeless by City authorities would be subject to
individual civil rights lawsuits, and any arrest not based upon probable cause by the Miami
Police Department would subject the police to the same liability, whether the aggrieved party is
homeless or not.
THE POTTINGER SETTLEMENT AGREEMENT AND THE CITY OF MIAMI BEACH
Indisputably, the City of Miami is the only municipality, out of the thirty-four (34) in Miami-Dade
County and the County's unincorporated area, that is subject to the Pottinger Settlement
Agreement. Nonetheless, the City of Miami Beach has utilized the Settlement Agreement as a
Letter to Commission Re: Memorandum Opinion in Michael Pottinger et al. v. City of Miami
March 5, 2019
Page 4 of 5
fundamental template and has not only tried to adhere to its provisions for many years, but
oftentimes has exceeded such provisions in its approach toward homeless individuals.
The City has essentially taken a dual approach to homelessness with coordinated efforts
between the City's Police Department and its Housing and Community Services Department.
The City, through its Housing and Community Services Department, created its first Homeless
Outreach Team in 2001 (consisting of a program coordinator and 2 contract employees) and
has since increased its staff three-fold to a program coordinator and nine (9) employees, and
established a walk-in center (located at 555 17" Street) for homeless persons seeking
assistance. Presently, the City allocates $1.8 million dollars to its homeless services budget for
the Housing and Community Services Department. and estimates that it expends $750,000 on
police resources for homeless engagement by the City of Miami Beach Police Department.
In an effort to support the Homeless Outreach Team, and to increase engagements and get to
know the City's homeless population, the Police Department established a dedicated homeless
resource unit which now consists of four ( 4) police officers, one ( 1) police sergeant, and one (1)
civilian homeless liaison specialist who are all supervised by a police captain. The primary
mission of the homeless resource unit is to provide assistance to homeless individuals and,
when appropriate, enforce ordinances and statutes. In an effort to provide assistance, the City
is one of the few municipalities to purchase beds for the homeless at three (3) shelters in Miami-
Dade County. Prior to effectuating the arrest of a homeless person for a "life sustaining
conduct" misdemeanor during the hours of 7:30a.m. - 3:30p.m., Monday- Friday, Miami Beach
police officers are able to refer the homeless person to the City's Homeless Outreach Team,
who can then offer the homeless individual an available bed at one of the three (3) shelters.
After-hours, the City has five (5) beds at the Salvation Army shelter which the City's police
officers are able to offer to homeless persons.
Moreover, those homeless persons who suffer from an issue concerning addiction, substance
abuse, or mental health can get help from the City. Such persons may be referred by the City,
either through the Police Department's highly successful Marchman Act Program (for those
long-term homeless individuals who suffer from substance abuse), or through the Housing and
Community Services Department. for appropriate services to help address those critical issues
of addiction, substance abuse and mental health that often plague those individuals living on the
streets.
Through its Homeless Outreach Team, the City also offers several types of invaluable
assistance to homeless persons. For example, the City will provide services to help homeless
persons replace various identification documents, including birth certificates, state-issued
identification cards, and immigration papers. In addition, if a homeless person has a friend or
family member that he/she wants to be reunited with and who is willing to assist that homeless
person, upon verification, the City will provide a once-per-lifetime bus voucher to reunite the
homeless individual with that friend or family member. Furthermore, since 2015, the Homeless
Outreach Team has implemented and administered a homeless employment program which
provides short-term work experience, important job skills, and interview/work clothes to
homeless, or recently homeless, individuals to help them transition off the streets.
L e tt er to C om m is si on R e: M e m o r a n d um Opinion in Michael Pottinger et al. v. City of Miami
March 5, 2019
Page 5 of 5
CONCLUSION
The Pottinger case sparked a re-evaluation throughout the community as to the treatment and
care of homeless persons and, as Judge Moreno aptly noted, the testimonial evidence was
unequivocal that the Pottinger Settlement Agreement was a catalyst for all stakeholders in
Miami-Dade County to devise appropriate programs to combat homelessness. It should be
without dispute that the City of Miami Beach has not only followed, but expanded upon, the
tenets set forth in Pottinger, and has continuously treated its homeless persons in a sensible
and compassionate manner. Irrespective of the fact that the Settlement Agreement has been
terminated by the Federal Court, this legal result must not alter the City's approach towards its
homeless population.
As such, I strongly recommend continuing this process into the foreseeable future without
regard to the termination of the Settlement Agreement. Therefore, and considering all aspects
surrounding this matter, it would not be prudent for the City to initiate any administrative
measures that would minimize those protections that are presently being offered to the City's
homeless population.
Should you have any questions or concerns about any of the foregoing, please don't hesitate to
contact me.
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UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA
Miami Division
Case Number: 88-2406-CIV-MORENO
MICHAEL POTTINGER, PETER CARTER,
and BERRY YOUNG,
Plaintiffs,
vs.
CITY OF MIAMI,
Defendant. _________________ __:/
M E M O RA N D U M O P IN IO N
"[O}ne of the things Potti nger has done so well is create this amazing collaboration
where it forced the different stakeholders to work together." (Tr. vol. 4, 29).' The veracity of
Judge Steve Leifman's statement was evident in this proceeding as this Court heard time and
again about the myriad of programs and aid available to the homeless in this community. There
can be no doubt that in the twenty years this Consent Decree has been in place, the City of
Miami has endeavored to eradicate homelessness. Although Miami has made significant inroads,
homelessness unfortunately persists, as it does in all cities in America. Yet, the City continues
daily to mitigate the effects in a manner consistent with the Pottinger Agreement. The issues in
these proceedings are whether the City has substantially complied with the Pollinger Consent
Decree such that federa! court oversight should come to an end after 20 years or whether the
City's treatment of the homeless requires this Court to continue its oversight and even to hold the
City in contempt.
1 References to the transcripts of the six-day evidentiary hearing are as follows:
Tr. vol. I refers to September 24, 2018 transcript
Tr. vol. 2 refers to September 25, 2018 transcript
I
EXHIBIT
A
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I. BACKGROUND
The world has changed dramatically since the original filing of this complaint 30 years
ago and the City of Miami is no exception. In 1988, Judge C. Clyde Atkins entered an injunction
to prevent the arrest of the homeless for being homeless and the seizure of their property. After
I O years of litigation, a settlement was reached between the homeless Plaintiffs led by Mr.
Pottinger and the City of Miami, and the undersigned entered the Consent Decree commonly
referred to as the Pottinger Agreement.2
The 1998 Pottinger Agreement was later modified with the agreement of both parties in
2014 to exclude sexual offenders from the protected class of the homeless. In the twenty years of
the Pottinger Agreement, the City of Miami police department instituted departmental policies
that prohibited the police officers' past practices of arresting the homeless without cause. As a
direct consequence of the excellent work done by the attorneys for the American Civil Liberties
Union representing the homeless, the Pottinger Agreement led to, not only a change in the City's
police department, but also contributed to a total cultural change in the way the homeless were
treated by all City employees. That cultural change also contributed to the creation of a Miami-
Dade County Homeless Trust supported by taxes and grants that yield an annual budget of
approximately $61-65 million to assist the homeless in various activities, including medical
assistance, shelters, etc. (Tr. vol. 2, 24).
Because of these changed circumstances, the City of Miami seeks termination of the
twenty-year old Pottinger Agreement. On the other hand, the Plaintiffs not only oppose the
Tr. vol. 3 refers to September 26, 2018 transcript
Tr. vol. 4 refers to October 24, 2018 transcript
Tr. vol. 5 refers to October 25, 2018 transcript
Tr. vol. 6 refers to November I, 2018 transcript
The original Plaintiffs, Michael Pottinger, Peter Carter, and Berry Young, are deceased or their whereabouts are
unknown. On December 23, 2013, the Court granted Plaintiffs' Motion to Add Class Representatives and named
Carole Patman and David Peery as class representatives.
2
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term in ation of the agreem ent, but they have also m oved to ho ld the C ity of M iam i in contem pt
fo r violating the agreem ent by seizing the pro pert y of the hom eless in the C ity's cl ean-up
opera tions. T he C ity's 2018 cl ean-up operation s w ere essential because of the healt h an d safe ty
concern s stem m ing fr om vari ous hom eless encam pm ents.
T he C o urt conducted an evidentiary hear ing on the part ies' m otions over num ero us days.
T he C ourt w ill m ake fi nd ings of fa ct and separate conclusions of law based on the testim ony of
the C ity's w itn esses, over thirt y hom eless w itnesses, and severa l expert w itnesses in the fi eld of
hom elessness. T he C ourt is not charged w ith "resolv in g" the hom eless pro blem in the City of
M iam i. H ow ever, the C ourt w as im pressed w ith all the serv ices pro vided to the hom eless by
m an y individuals and organizatio ns as a direct con sequence of the cultura l change engendered by
the Pottinger A greem ent. A s such, there is litt le dispute that the num ber of hom eless has been
reduced countyw id e fr om I 0,000 to aro un d 1,000, although those num bers are im preci se because
of the diffi cu lty of cou nting the hom eless. O f those, the overw helm ing m ajority ( over 600) are in
the C ity of M iam i. A ccording to the U .S . C ensus, the 20 17 pop ulation estim ate fo r the City of
M iam i is 463,34 7 and the estim ate fo r the C ounty is 2,7 51,796 .3 M eaning, even though the
C ity's population is only about 17 % of the C ounty's overall population, it is hom e to over 60%
of its hom eless. Indeed, M r. R onald L. B ook, C hair of the H om eless Tru st, testifi ed that 66% of
all homeless individuals placed in shelters come from the City of Miami. (Tr. vol. 2 at 10).
T hus, there is litt le dispute that M iam i has changed , its hom eless population has declined
by 90%, an d the C ity is the on ly m un icip alit y out of 34 in M iam i-D ade County and the County's
unin corp ora ted area,4 subject to the Pottinger A greem ent. A lso, both sides agree that arr esting
'See http s://w ww.census.gov/qu ickfa cts/fact/table/m iam icityflorida,m iam idadecountyflorida/PS T04 5217.
4 It is estimated that the population of the County's unincorpora ted arca exceeds one million residents,
appro xim ately 36% of the total population. See https://w ww8.m iamidade.gov/glob al/disclaim er/ab out-m iam i-dade-
county.page.
3
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the homeless is never a solution because, apart from the constitutional impediments, it is
expensive, not rehabilitating, inhumane, and not the way to deal with the "chronic" homeless,
who suffer from mental illnesses and substance abuse addiction. The solution to those problems
is beyond the scope of any power given to the judiciary. Yet, the Court does have the power to
enforce the parties' agreement and of course, courts always have the power to enforce the United
States Constitution to protect individuals from unlawful arrests and seizures of their property.
The dispute in this case is simply the impact that tenninating the Pottinger Agreement
will have on the constitutional rights of the homeless to be free from harassment, arrests, and the
unlawful taking of their property. During the last twenty years, so much has changed in how the
City of Miami treats its homeless population that the Court finds the Pottinger Agreement should
indeed be terminated. The changes in the treatment of the homeless are the direct result of the
vigorous challenge by the American Civil Liberties Union attorneys on behalf of the homeless in
this case.
The Court is under no illusions that the City of Miami has resolved homelessness. But, as
homeless expert Judge Steve Leifman, a witness for the Plaintiffs, testified, Miami has become
the best city in the country in dealing with the homeless. The health crisis, about which there is
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no dispute involving drug use, public sex, and rodents in homeless "camp s," must be dealt with
for the protection of the homeless themselves and the citizens, including children, who live and
walk near these gatherings. Any abuse by the authorities is subject to individual civil rights suits.
Unattended personal property left on public sidewalks and fences, which pose public health and
safety concerns, are allowed to be seized and dispensed by the City. Any arrest not based upon
probable cause by the City of Miami police department will subject the police to the same
liability whether the aggrieved party is homeless or has a home.
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T herefo re, the C ity of M iam i's M otion fo r T erm in ation is G RA N T ED , and the P laintiffs '
M otion to H old the C ity in C on tem pt is D E N IE D .
II . FIN DI N G S O F FA C T
T w enty year s ago, this C ourt appro ved a sett le m ent betw een a cl ass of Plaintiffs,
consisting of hom eless indiv iduals, and the C ity of M iam i, w here the P laintiffs lived. U nited
States Di strict Judge C . C lyde A tkins fo und the C ity of M iam i had unconstitutionall y arr ested
hom eless person s fo r engagin g in life -sustaining acts they w ere fo rced to conduct in public, such
as sleepin g, cooking, eatin g, sitt ing, congregating, and reli evin g th em selves. Judge A tkins fo und
the C ity "used the arrest pro cess fo r the ulterior purp ose of driv ing hom eless from public ar eas."
Pottinger v. City of Miam i, 810 F. Supp. 1551, 1566 (S .D . Fl a. 1992).
R ecognizing the lim ited ro le of the C ourt in fa shion in g a rem edy, Judge A tkins issued a
negative injunction that pro h ibited the C ity fr om arr estin g hom eless people fo r sleeping, eating,
lying dow n, or sitt ing in tw o safe zones he established in dow nto wn M iam i. The injunction
fu rt her prohibited C ity police fr om destro ying personal propert y belonging to the hom eless. The
inju nction did not pro hibit poli ce fr om arr esting hom eless person s fo r crim inal acts.
T he Settlem ent A greem ent ultim ately reached in this case w as the pro duct of ten years of
litigation, appeals, and extensive m ediation . A ft er a hearing, this C o urt , assigned to the case aft er
Judge A tkins, appro ved the P ottinger A greem ent, w hich has been in place ever since.
A s m odifi ed in 2014, the C onsent D ecree detail s a protoco l that govern s C ity of M iam i
police interactions w ith those experiencin g hom elessness. C ity police m ay not appro ach a
hom eless individu al, w ho is not com m itt ing a crim e, unless the approach is to offer services.
(C onsent D ecree, D ef. E xh. 1 at 6-8).° W ith certain exception s, the police m ay not arr est or
threaten to arr est any hom eless person fo r com m ittin g "life su stain ing conduct m isdem eanors,"
5 The Consent Decree is at D.E. 382. The 2014 Addendum is at D.E. 525-1.
5
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unless they first offer the individual an available space in a shelter within city limits or within a
mile of those limits, and the individual refuses that offer. Id. at 6, 8. Upon refusal of available
shelter, the homeless individual is subject to arrest if there is probable cause that a crime has
been committed. Id. The Consent Decree lists the life-sustaining conduct misdemeanors and does
not prohibit police from arr esting individuals for misdemeanors not on the list. Id. at 9-11. M iami
police need not offer shelter prior to arresting a homeless individual committing a felony. Id. at
12.
The Consent Decree also offers protection for the property of homeless individuals. The
Decree requires all City employees to follow procedures for taking custody of personal property
and not to destroy personal property reasonably recognizable as belonging to the homeless. Id. at
12-13. Th e Decree does not prevent the City from destroying contaminated property, or property
that otherwise poses a health hazard. Id. The evidence showed that although the City has routine
protocol in place, the City outreach team did not have wr itten procedures in place for the
handling of property when the Plaintiffs filed their motion for contempt."
In its motion, the City of Miami seeks to terminate the Consent Decree, or at the very
least, modify it in four different ways. One proposed modification is to exclude what the City
calls the chronically homeless from the purview of the decree. The other proposed modification
would permit a shelter space anywhere in Miami-Dade County to be offered in lieu of arrest for a
life sustaining conduct misdemeanor, rather than only a shelter within the city limits or within
one mile, as is currently the case. The City also proposes two additional modifications, which are
to include language prohibiting the storage of a homeless person's belongings on public property
and exempting from the Decree actions taken by the City in cleaning public areas.
6 After Closing Arguments, the City filed a written Administrative Policy Addressing Treatment of Homeless
Property. Because this policy was not introduced at the evidentiary hearing, the Court docs not rely on it in ruling
on the motions.
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In its discretion, the Court held an evidentiary hearing to resolve the disputed issues of
fact and to determ ine whether the City carries its burden to show significan t changed
circum stan ces and substantial com pliance with the Consent Decree. The inquiry is fact-intensive.
The trial court is "vested with bro ad discretion in granting or denying discovery." See King v.
Greenblatt, 149 F.3d 9, 13 (Ist Cir. 1998). This Court allowed the parties lim ited discovery prior
to conducting the evidentiary hearing.
A. Summary of Changed Circumstances in the City of Miami since 1998
The testim ony was unequivocal that the Pollinger Agreem ent was a catalyst fo r all the
stak eholders in M iam i-Dade County to devise appro priate pro gram s to com bat hom elessness. It
w as an "incentive to pro vide the serv ices for the population." (Tr. vol. 4, 8). Judge Steve
Leifm an , Associate Adm inistrative Judge of M iam i-Dade County's Crim inal Di vision, and the
Chair of the Florida Suprem e Court Steering Com m ittee on M ental Health and Substance Abuse
C ourt s, testified that "(i]t has been a significant m otivator fo r all the stakeholders to com e up
with appropriate program s on how to deal with this population, and it has worked." Id. at 7. The
evidence show ed that the num bers of hom eless persons in M iam i has plum m eted. Id The
evidence also show ed that the "population that we have left on the street is different than what
we had when w e fir st started." Id. Pottinger was not developed to address the m ental and
substan ce abuse issues that rem ain present in our com m unity. It was prim arily devised to prevent
the police fr om arr esting the hom eless in certain circum stances and from unlaw fu lly tak ing their
pro pert y. The evidence show ed "it has achieved that end." Id. at 15. The evidence also showed
that the City of M iam i is unlikely to revert to those policies given the m yriad of pro gram s
available to it as a m eans to aid the hom eless. Those pro gram s did not exist when Pottinger was
fil ed in 1988. It is tru e that by the tim e the Consent Decree was entered, ten years after the
litigation began, the wheels were in m otion and hom eless aid initiatives were beginn ing to take
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shape. In the tw enty years since, the prolife ra tion of serv ices an d fu nding available in this
com m un ity has been transfo rm ative causing a 90% reduction in the num ber of hom eless. There
is also a genera l consensus of w hat w ork rem ains and how to chip aw ay at those rem aining
statistics.
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l. Changes in Police Work
T he C ity began its presentation by calli ng its Police Chief Jo rge Colina, a 28-year veteran
of the fo rce and the chief since January 2018 and Ja m es B ern at, an executive offi cer fo r the
Poli ce D epart m ent, and an I I-year veteran w ith the fo rce. Chief Colina discussed the City's
interdep art m ental effort s to aid th e hom ele ss, including the City's new ly fo rm ed D epartm ent of
H um an Serv ices. (T r. vol. 1, 60-61, 94). Both testified regarding the changes in policing since
Pottinger's incep tion. N ow , every C ity offi cer w ears a body cam era to record engagem ents w ith
the publi c and every offi cer has access to an interactive sim ulator to teach them how to react in
different scenario s. Id. at 65-67. Every police vehicl e has a com puter, w here offi cers can w atch
train ing videos and access D epartm ental O rders, including those orders explaining how to treat
the hom eless. Id. at 68-69. All offi cers receive tra ining on Pottinger's requirem e nt s and scenario-
based tra in in g so they are w ell-versed in the appro priate treatm ent of the hom eless. Id. at 54-55;
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(D ef. E xh. 40).
C h ief C o lin a testified that the departm ent has im plem ented disciplinary procedures since
the Pottinger agreem ent w as entered. Id. at 61. A ny poli ce offi cer fo und to have violated the
order is subject to disci pli ne, up to and incl uding term ination or arr est. Id. at 47-48. O ne incident
invo lving a hom eless individual nam ed Java Bro oks, is under investigation by the D epartm ent's
Intern al A ffairs. Id. at 87-88.7
7 The Court notes that Java Bro oks testified that she had recently changed her nam e and her prior nam e w as Java
H ouston. In the pleadings, the part ies use both nam es interchangeably. (Tr. vol. 3, 151).
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Section VIII of the Pottinger Agreement requires the City to keep records of police
interaction with the homeless. Pursuant to the agreement, officers document every interaction
with a homeless individual in the form of a Field Information Card. (Def. Exh. 1 at 9).
Departmental Order 11, Chapter 1 O requires that these cards be kept on file with the police
records unit like the old library card cataloguing system. (Def. Exh. 95, 100). Beyond dispute is
that changes in technology, including body cameras and cellular phones, render this requirement
of a "card catalogue" archaic and obsolete. The Court observed videotape evidence documenting
police interactions with the homeless in this case. (Pl. Exh. 578-37, 39). AIthough there are many
contributing factors, the transparency in police work, caused by technology, surely helped
precipitate the sharp decline in arrest statistics relating to homeless individuals. (Tr. vol. 4, 30).
2. Funding Changes and the Development of the Continuum of Care
The evidence described the changes in funding efforts in Miami-Dade County since the
inception of the Pottinger Agreement. Ronald L. Book, the Chairman of the Homeless Trust for
the last decade, testified as to the funding efforts to assist the homeless in this community. Prior
to serving as the Chair of the Homeless Trust, Mr. Book chaired the finance committee since the
Homeless Trust's creation over 24 years ago. Mr. Book began his work 25 years ago on a
legislative effort to pass the food and beverage tax in Miami-Dade County. (Tr. vol. 2, 5-6). The
tax was an outgrowth of the Governor's Commission on Homelessness and part of a l O-year plan
to end homelessness in Miami-Dade County. Id. The Homeless Trust is the funding source and
overseer of the panoply of services for the homeless, known as the continuum of care in Miami-
Dade County. Id. Twenty-seven members participate on the public board that administers the
food and beverage tax dollars, federal and state grants, and other revenue streams. Id. The
continuum of care was created to provide all the programs and services needed to end
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homelessness. Id. at 7. It starts with the City of Miami's outreach teams, known as the Green
Shirts, many of whom are formerly homeless individuals themselves. The Green Shirts work on
bringing the homeless into the continuum of care, which includes medical care, mental health
counseling, substance and alcohol abuse treatment, shelter, and housing. Id. at I O.
The City's outreach efforts are "completely intertwined" with the Homeless Trust. Id. at
9. The Trust owns two Homeless Assistance Centers, in its partnership with the Chapman
Partnership. Id. at 1 O. The City's outreach workers bring the homeless individuals (from the City
of Miami and other geographic areas) to these centers; the homeless cannot simply walk into a
center for assistance. Id. The placements in the Chapman Homeless Assistance Centers are 66%
derived from the City of Miami. Id. In the 24 years since the creation of the Homeless Trust, the
County started with over 8,000 street unsheltered homeless individuals, and that number has
plummeted to 1,104. Id at 11. Of the roughly 1,000 homeless in the County, approximately 664
are in the City of Miami. Id. at 11, 17. Mr. Book testified there has been a 90% reduction in the
City of Miami and countywide since the start of the Homeless Trust. Id. at 11.
The Department of Housing and Urban Development also provides funding and dictates
certain standards and protocols for homeless individuals to access the system. (Tr. vol. 2, 79).
The Homeless Trust developed a Coordinated Entry System, which provides a hotline for
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homeless individuals to call for aid. Id. The evidence showed that homeless individuals
sometimes have to call the hotline for 30 days or more to get into a shelter. Id. at 79-80; (Tr. vol.
3, 50-51). The Can1illus House Day Center provides phones for them to call the hotline. (Tr. vol.
2, 80).
The monies generated by the Homeless Trust from the food and beverage tax are used as
an elastic band. Id. at 13. When the Trust provides funding to the different community-based
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organizations, such as Camillus House and the Salvation Anny, the Trust expects these
organizations to use those funds as leverage to obtain additional grants and funds to buy more
beds and units of housing. Id. Of the funds collected by the Trust, approximately 33 to 34% are
generated in the City of Miami, which is the dominant source of food and beverage tax revenues
in the County. Id. The Pottinger Agreement has no impact on the collection of the food and
beverage tax. Id. at 15.
Camillus House is a key component of the continuum of care. Hilda M. Fernandez, the
CEO of Camillus House, a Ministry of St. John of God, testified regarding the organization's
work with the homeless in Miami-Dade County. Id. at 50. Camillus House operates programs
throughout the county serving about 1, I 00 people daily. Id. at 5 l. Some of the programs include
the Lazarus project, which is a program that is a combination of employees from Camillus House
and Camillus Health. Id. at 52. The medical assistants, a psychiatric nurse practitioner, and the
Green Shirts engage the hardest to serve, severely mentally ill chronically homeless, medicate
them on the street, and get them sufficiently stable to enter the continuum of care. Id. Dr. Edward
Suarez, the fonner director of the Lazarus Project, testified that the idea is to get homeless
individuals started on necessary medication and therapy while they await housing. Id. at 94-95.
Camillus also provides a day center to serve the street homeless, allowing individuals to
come in and access showers, clothing, a hot breakfast, and mail service. Id. at 52. Camillus
operates with a sister agency, Camillus Health Concern, which provides a clinic on the Camillus
campus, which provides healthcare services to those that come into the day program. Id. at 55.
Camillus provides temporary storage while people are accessing services on the Camillus
8 The fo od and beverage tax is not charged in the cities of M iami Beach, Bal Harbour, and Surfside, which charge
tourism -related taxes. The City of M iam i Beach pro vides fu nds to buy beds in the continuum of care and coordinates
w ith the Hom eless Tru st in that regard. W hen the City of M iam i Beach purchases beds, oftentim es the beds are in
the City of M iami. (Tr. vol. 2, 13-15).
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campus. Id. at 52. The organization also provides emergency housing, treatment program s, and
permanent supported housing. Id. at 52-53. In providing all these services, Camillus serves
various populations, including unaccompanied homeless youth, victims of human trafficking,
and veterans. Id.
For the last fifteen years, Camillus has been providing permanent housing, which is
known as the Housing First model in the continuum of care. Id. This is housing for individuals
moving out of homelessness, who do not need intensive support services, and can pay reduced
rents to live in facilities owned by Camillus. Id. There are on-site clinicians that provide services
to individuals in permanent supported housing. Id. at 56.
In addition to Camillus House's partnership with the City of Miami on the Lazarus
Project, the City has an agreement with Camillus to fund shelter beds and provide support for the
Camillus Day Center program. Id. at 56-57. The City fonds 75 beds, 65 are extended-stay beds,
and I O are 24-hour beds. Id. at 59. Former City Commissioner Marc Sarnoff testified that the
City provided funding, $10 million dollars, to aid Camillus House's relocation to its new
campus. (Tr. vol. 2, 30).
3. The Chronically Homeless and Outreach Efforts
The City's outreach efforts have also changed since the inception of the Pottinger
Agreement. The record demonstrates agreement among City police and administration that
arresting homeless individuals is not an effective remedy since the homeless individuals return to
the streets within a short time. The City created outreach operations to move homeless
individuals off the streets and into the continuum of care. As of the fall of 2018, the City created
a new department called the Department of Human Services. (Tr. vol. 1, 276). The Department
includes homeless outreach, a child care center, job training, and employment. Id. at 277.
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Prior to this past fall, the City of Miami's Department of Veterans Affairs and Homeless
Services provided outreach to the homeless community.
The City's Green Shirts, the homeless outreach employees, work in the streets of Miami
to move the homeless into the continuum of care or to get them social services as needed. Sergio
Torres, the Director of the new Department of Human Services, testified that he conducts
training sessions for his department, and other City employees, who interact with the homeless,
including Parks and Recreation staff and the police department's Neighborhood Enhancement
Teams. (Tr. vol. 1, 233-234). David Rosemond, the Assistant Director of Neighborhood
Enhancement Teams, oversees the Green Shirts to ensure they are working as a cohesive unit.
(Tr. vol. 6, 30). Due to the teams' active engagement with the homeless, the City of Miami has a
contract with Miami-Dade County to perform the work countywide. Id. at 31. The role of the
Green Shirts is to usher the homeless from the streets and to the agencies that can best provide
them services. Id. at 32. Many know the homeless individuals by first and last names and know
their circumstances. Id. at 33. The City provides the Green Shirts with training on how to engage
the homeless, how to provide them services, and how to talk to people who find themselves
homeless. Id. The majority of the Green Shirts are formerly homeless individuals, or individuals
in recovery. Id. at 34. Some of the Green Shirts have been working in that capacity since the
inception of the project in 1992. /d. at 35.
The outreach efforts are not always successful as many homeless individuals refuse
available shelter. Officer James Bernat testified that many prefer to stay homeless even if they
can obtain available shelter due to mental illness, substance abuse issues, and other reasons.
Judge Leitìnan, a witness for the Plaintiffs, also confirmed the change in the type of homeless
individuals now versus twenty years ago. Shelters are controlled environments with rules, which
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many homeless individuals do not want to follow. A majority of the unsheltered homeless
population are "chronic homeless," meaning they have been living on the streets for 365 days or
more, or they experience four instances of homelessness in a three-year period. (Tr. vol. 2, 17).
About 67-69% of the homeless population is chronically homeless. Id. This is a population that
is shelter-resistant and would benefit from a Housing First program, which is not a shelter
facility, but rather an individualized home. Id. This population needs to be incentivized to seek
housing. Mr. Book testified that allowing street feedings and panhandling, as well as the
Pottinger agreement, itself, all make it harder to get the chronically homeless into the continuum
of care. Id. at 17. The County and Jackson Memorial Hospital gave $42 million for the
construction of a new facility on 7" Avenue and 22" Street in the City of Miami to help this
population. In addition, there is a city-owned property around that facility, and a desire to build
thousands of new units of low-income affordable housing for the chronically homeless. (Tr. vol.
4, 25-26).
There is agreement that many chronically homeless suffer from mental illness. In 2000,
Judge Leifman convened a summit to address how to better handle mental health issues in the
criminal court. (Tr. vol. 4, 2). The summit devised a pre- and post-arrest diversion system. As a
result, Miami-Dade County has the largest squad of officers trained in Crisis Intervention Team
policing. Id. The program provides training for law enforcement that teaches them to identify
people in crisis, how to deescalate a situation, how to Baker Act" individuals, and where to take
them. The programs provide an alternative to arrest. Id.
The summit also set up post-arrest diversion programs for people with serious mental
illness who get arrested, one for misdemeanants, one for non-violent felonies, and one for
9 T he Florida M ental H ealth A ct, com m only know n as the B aker A ct, allow s fo r the involuntary institutionalization
and exam ination of an individual. Judges, law enfo rcem ent, physicians, and m ental health pro fe ssionals can initiate
the pr ocess. $ 394.4 63, Fla. Stat.
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competency restoration. Id at 3. The success of those program s is evidenced in the statistics .
"[B ]etw een 20 I O and 20 17 , the C ity of M iam i and M iam i-D ade Police D ep art m en t[s] com bined,
handled 83,427 m ental ill ness call s and only m ade 14 9 arr ests." Id T he recid iv ism rate has
dro pped fr om 72 to 20 percent in the m isdem eanor pro gram an d the fe lo ny progra m has saved
the C ounty "abou t 68 year s of ja il bed days w ith a low recid ivism rate." Id. T he C om petency
R estora tion A ltern ative Program helps individuals get services as opposed to being sent back to
the street w ithout assistance. Id. B efo re these pro gram s started, there w ere tw o shootin gs per
m onth of people w ith m ental íll nesses. íd. at 19 . N ow , there have been fi ve or six in eight years.
Police inju ries of m entall y ill people has alm o st com p letely vanished and "out of 5,200 calls in
the C ity of M iam i last year there w ere six arr ests." Id. W hen a m entally ill hom eless person
w inds up in court , the state cou rt call s the G reen Sh irt s to aid the hom eless in div idual. Id. at 33.
T he G reen Shirt s are also involved in the U niversity of M iam i's N eed le E xchange
Pro gram . D r. E dw ard Su arez testifi ed that it is Florida 's fir st and on ly syringe exchange
pro gram . (T r. vol. 2, 92, 96). A s part of his w ork and due to his train in g in crisis in terventio n,
D r. Suarez can B aker A ct w hen he sees an "individual w ho's fl oridly psychotic, respon din g to
intern al stim u lation ... hasn't eaten, hasn't drank , not takin g care of him self, is being a danger to
them selves by w ay of self-neglect ... to the poin t of self-h arm ." Id. at 98. A t that point, D r.
Suarez can call a City of M iam i N eighborhood R esource O ffi cer to tra nsport the individ ual to
Ja ckson C risis, and that in dividual gets housed. Id at 99 . H e says that he has a sym biotic
relationship w ith the C ity of M iam i polic e and to that end, he testifi ed that "w henever [the police
or outreach personn el] get in to a jam , befo re they com m it anything - w hatever, befo re they put
any hands on an ybody or anything of that sort , I get a phone call" seekin g adv ice an d assistance
since he is fa m ili ar w ith m an y hom eless indiv iduals. íd.
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T he objectiv e of the N eedle Exchange Pro gram is to test the hom eless individuals fo r
H IV and H epatitis C . W hen hom eless individuals test positively fo r H IV , D r. Suarez start s HI V
m edication that sam e day. Id. at 106. H e then goes out to find that person in the street, days later,
to rem ind them to refil l their m edications. Id. The C ity of M iam i aids in the pro cess by helping
Dr. Suar ez locate in divi dual s and pl ace th em int o shel ters." Id. at 107, 120. O nce the indiv idual
is in a sh el ter, Dr. Suarez can get th at pers on into H IV car e, an d th at per son w ill have a dedic at ed
space to store the HI V m edication. Id. at 107.
B . O utrea ch Efforts and Procedures Regarding Prop erty
T he C onsent D ecree contains a section titled: "D isposition of Pro perty Belonging to
H om eless Person w ho is arr ested." It states:
T he C ity shall respect the personal pro perty of all hom eless people.
T he M iam i Poli ce D epartm ent (and all other D epart m ents
includin g but not lim ited to Parks and Recreation and Solid W aste)
shall fo ll ow their ow n intern al pro cedures fo r taking custody of
personal pro perty. In no event, shall any city offi cial or w orker
destro y any personal pro perty know n to belong to a hom eless
person, or readil y recognizable as pro perty of a hom eless person
(i.e. bedding or cl othing and other belongings organ ized or
packaged together in a w ay indicating it has not been abandoned),
except as is perm issible by law and in accordance w ith the
departm ent's operating pro cedure, or if the propert y is
contam inated or otherw ise poses a health hazard to C ity w orkers or
to m em bers of the public.
(D ef. Exh. I at 12). This section places two requirements on the City departments with regard to
pro pert y of hom ele ss ind ividuals: (1) all depart m ents m ust "fo llow their ow n intern al pro cedures
fo r taking custody of personal pro perty," an d (2) no City em ployee m ay destroy property
belonging to hom eless individuals except w here perm itted by law , or if the pro pert y is
contam inated. T he evidence show ed that the City outreach w orkers fo llow intern al procedures,
alb eit unwr itten ones, fo r the handling of property. The Pottinger A greem ent did not require the
pr . Suarez testified that Green Shirt Willie Rachel helps him locate these individuals. (Tr. vol. 2 at 102, 107).
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City to have wr itten pro cedures fo r the handling of pro pert y. A lthough a wr itten protocol is
prefe rable and has fi nall y been prepared, it is im port an t to note that in the tw enty year s that
Pottinger has been in place there has not been a com plaint regarding the handling of pro perty or
a lack of w ritten procedures until now .
W hen an outreach w orker assists a hom eless individual into a shelter, the w orker fo llow s
a pro cedure to deal w ith the pro pert y. (T r. vol. 1, 248-49, 254). Wh en a hom eless individual
accepts an offer of shelter from an outreach w orker, the outreach team assists him in storing
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bulkier pro pert y that the individual cannot take into a shelter. (T r. vol. 6, 44). The hom ele ss
person enterin g a shelter tak es the belongings he m ay w ant to keep, and the outreach w orker w ill
item ize the rest of the item s on a receipt, w hich the outreach w orker then gives to the hom eless
ind iv id ual. Id. T he ou treach w orker then takes that pro perty to the C ity's stora ge unit. Id. This
sam e pro toco l w ould be used w hen encountering abandoned pro pert y in the streets. Id. at 46-47.
In that situation, the outreach w orker w ill go thro ugh the pro perty and separate item s of value,
incl uding docum entation, m edic ation, phones, or pictures. Id. The outreach w orker item izes
those things an d puts them in a bag to take to storage. Id. The outreach w orker also leaves a note
on the site w here the things w ere located so that the individual know s that his belongings w ere
gathered by the outreach team . Id.; (D ef. Exh. 28) (ph oto grap h s of notes on fe nces). T he notice
contains an address and phone num ber w here the hom eless can retrieve their pro perty. Id. The
depar tm ent stores the pro pert y as long as there is space, and in reality, has not thr ow n anyt hing
aw ay. (T r. vol. 6, 48-49). The outreach team patro ls those areas fo r days w here the property
w ou ld be taken in the event som eone is looking fo r his belongings. Id. at 46-47. O nly one
hom eless person , R obert Rh odes, testifi ed that he attem pted to retrieve his pro pert y from the
fa cil ity, and w as unable to do so. (T r. vol . 3, 17-18).
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l. 2018 Clean-Ups
The City outreach workers unquestionably began clean-up efforts in the downtown
Miami area in 2018 due to health and sanitation concerns from the homeless encampments. The
City Manager Emilio Gonzalez coordinated various city departments to target and clean up
hotspots. His direction to clean these areas indicates that the work should be done in accordance
with the Pottinger Agreement. (Pl. Ex. 601-65). Plaintiffs claim Mr. Gonzalez's directive was
the beginning of a coordinated attempt to disperse the homeless from the downtown Miami area
and resulted in a violation of constitutional rights. Evidence showed that the City's efforts were,
at least in some part, due to complaints it had received from residents. The Plaintiffs rely on an
email from Milton Vickers, Special Assistant to the City Manager, to make this point. The text of
the email from Milton Vickers to Police Chief Colina reads:
Chief Colina, the Homeless Outreach staff have developed a plan
to address homeless encampments and unattended contaminated
items. It is imperative that this be coordinated with police in these
locations and be patrolled in the future to ensure that homeless
individuals do not return to these locations. The Homeless
Outreach staff will be in full compliance with the Pottinger
Agreement. Please see thread below.
(Pl. Exh. 601-65 at 1 ); (Tr. vol. I, 82). The Deputy City Attorney Barnaby Min also wrote an
email to other Assistant City Attorneys requesting that they follow-up with Milton Vickers to
make sure the clean-ups were Pottinger compliant. (Pl. Exh. 601-4). The evidence showed that
the City tried to relocate the individuals that were living in the clean-up areas to available
shelters and that individuals returned to the spots after the clean-ups. (Tr. vol. 3, 13) (Testimony
of Robert Rhodes) (stating he walked down the street with his belongings while the City power
washed the street and he returned later that afternoon and slept in the same location that night.).
That the City wanted to prevent the squalor and unsanitary conditions from re-manifesting after
completing a clean-up is not a Pottinger violation. Rather, the clean-up efforts inure to the
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benefit of the homeless sleeping on the sidewalks. Overall, the evidence showed the City was
working to clean the streets for the public welfare, while also meeting its Pottinger obligations.
On September 19, 2018, the Florida Department of Health notified the City of a specific
area of concern located between 13" and 14" Streets and between NW I and 2"d Avenues in
Overtown, a neighborhood in Miami north of the downtown area. The Department indicated that
these areas were a significant public health concern and were being investigated. (D.E. 658-1).11
The clean-up had to be handled with the assistance of a specialized biohazard waste clean-up
crew. Video evidence showed human feces, rats, and contaminated items in the area. Judge
Leifman testified that he observed this site under the expressway overpass, in the Overtown
section of Miami, which he described as a public health crisis. (Tr. vol. 4, 12). "lt was like a
horror movie. There were a lot of women using right in front of us. There were needles hanging
out of different parts of their body. Many were collapsed lying on the street half naked. There
were rats running around, there were needles everywhere. lt was an opioid den ... There was a
big concern that if we disturbed the site too quickly those illnesses would spread." Id. Judge
Leifman testified that a young boy was walking through the area on his way to school and got his
hands on fentanyl and died. Id. at 21. Despite the gravity of the situation, there was not one
arrest. Id. at 15, 20. With regards to this site, Judge Leifman testified that 30 people were moved
into treatment within a week and property was appropriately taken. He did not witness City
officials seizing and destroying personal property. Id. at 20. He noted that from what he
observed, however, that mattresses and whatever else was being used for sleep were not fit for
human use. Id. Dr. Suarez was also involved in this clean-up of this Overtown site. (Tr. vol. 2,
11 O). Once it was clear that there was an HIV network, Dr. Suarez stated that City workers
The City filed a motion for judicial notice of the Florida Departm ent of Health letter. The Plaintiff did not oppose
the request as to this particular document and the motion is granted as to this document.
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understood that the homeless individuals in this area could not be dispersed and that when the
appropriate time came, they would work to get the people into shelters. Id at 111.
The City protocol for executing the clean-ups includes posting notices at least seven days
prior to the clean-up. (Tr. vol. 1, 235-36; 216-17) (Tr. vol. 2, 65). In the two weeks leading up to
a clean-up, the City outreach workers would provide increased efforts to place the individuals
living in certain areas of downtown in available shelters. Id; (Tr. vol. 6, 43). Camillus House
ensures there are beds available when the outreach teams identify areas for clean-ups. (Tr. vol. 2,
64 ). The evidence showed there is daily engagement, which means that the outreach teams go
out daily at different times to offer individuals placement opportunities as often as possible
before the clean-up." (Tr. vol. 2, 65-66); (Tr. vol. 6, 43-45). Much like the City's general
protocol for handling property, the outreach workers followed the same procedure during clean-
ups. If the outreach workers identify anything important- such as identification cards or
medications - they inventory and store the property. They discard contaminated property. (Tr.
vol. 1, 248-49). The outreach workers leave a notice for property they take to storage or discard.
(Tr. vol. 2, 65) (Def. Exh. 28). The Plaintiffs dispute that these notes were left and argue there
was no guarantee that the owner of the property would receive these notes. The evidence showed
a few examples where the handwritten notes were placed on a fence, such that they would not
easily blow away. The handwritten notes provided an address where the City took the unattended
personal property. Id.
Dr. Edward Suarez testified about the clean-ups stating that the team comes with
"engagement tools: bottles of water, food, blankets. We do not go in there with the idea of ...
dispersing or kicking people out because that doesn't help. That just spreads the problem across
the city, and we use engagement tools to build rapport. So the clean-up is really rapport
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buil d ing." (T r. vol. 2, 103). D r. Suarez explained that he show s up w ith the City em ployees to
perfo rm the cl ean-up and they ask the individuals to m ove. They offer them clean cl othes. W hile
the clean-up is goin g on, the individuals are offered detox at Banyan B ehaviora l or shelter beds.
T hey w ork w ith C am illus and the H om eless Tru st to ensure there are shelter beds available
during a cl ean-up . Id . at 104-105. H e also testified that they ask individuals to "m ove fo r a little
bit until w e cl ean everyt hing, and they're m ore than w elc om e to com e back to that spot." Id.
Plaintiffs presented the testim ony of over thirt y hom eless individuals, incl uding the class
representativ e D avid Peery. Cum ulatively, the hom eless w itnesses testified about w hat occurr ed
during the clean -ups. 13 The Plaintiffs presented testim ony that the clean-ups in the Lot 16 area
w ou ld start very early in the m orn ing. That appears reasonable so as not to im pede both
vehicu lar an d ped estri an traffic, w hich increases trem endously as thousands of em ployees com e
to w ork befo re 8:00 a.m . The hom eless w itnesses testified that offi cers an d G reen Shirt s w ould
sound loud noises, shine bright lights, and request the hom eless, w ho ar e sle eping on the
sidew alks, m ove so that they could pressure cl ean the sidew alks. (T r. vol. 3, 12, 42, 76). O ffi cer
Jo se G alvez, w ho w orks w ith the C ity's N eighborhood Enhancem ent Team , testified regarding
the cl ean-ups. A s a neighborhood resource offi cer, he goes to com m unity m eetings to address
issues in the dow ntow n M iam i ar ea. (Tr. vol. I, 203). O ffi cer G alvez testified that the City starts
the clean-ups earl y in the m orn ing befo re 8 a.m . Id. at 204. T he N eighborhood Solid w aste team s
drive tru ck s to coll ect bulky item s in the streets or on the curb. Id. at 207.
T he m anner that the City handled personal propert y during the cl ean-ups is vehem ently
contested in this pro ceeding. W hen pro pert y is fo und, the N eighborhood Solid W aste team w ill
? There are a few areas where the clean-ups occurred: I) the down town area kn own as Lot I6, a m unicipal parking
lot east of the M iami River under the 1-95 underpass, bounded by the M iami River on the east, S. W. I" Street on the
north, and S,W . 3 Street on the south ; 2) Overtown area under the 1-395 overpass on N.W , II" an d 13" streets
betw een N , W . I an d 2 Avenues; 3) the downtown area by the old M acy's on Flagler street; 4) NW. 6" street by
the new Brightline station and one block from this courthouse; 4) the downtown area by Governm ent Center across
the street from this courthouse; and 5) Peacock Park in Coconut Grove.
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take contaminated unattended property, such as cans, food, or soiled sheets. Id. at 21 O. Offi cer
Galvez said the team does not discard aban doned bookbags, which he says are left in the middle
of everything. Id. In video footage, the Court observed the officers placing sheets and mattresses,
and trash bags in a pile to be discarded. Again, such actions appear reasonable due to the
evidence of contamination and the spread of diseases. However, unattended bicycles, which pose
no such health risk, were left by the clean-up crews on the street. Offi cer Galvez testified about
the need to pressure wash the street on 1st Street and Southwest 2nd A venue, because of the
amount of human feces, urine, and contaminated sheets in the area. Id. at 213. During the
pressure washing, the homeless were asked to move, even if they were sleeping, and many went
across the street to an empty parking lot. Id. at 214. They were again offered available shelter,
which is corroborated by the testimony of Hilda Fernandez, who testified that Camillus House
sets aside beds during clean-ups so that the affected individuals would have a place to go. Dr.
Suarez also testified that affected individuals were offered an opportunity to go to a detox
facility. (Tr. vol. 2, 64, 105). The Neighborhood Solid W aste team discarded whatever property
the homeless no longer wanted to keep and would provide bags so they could carry their personal
belongings. (Tr. vol. 1, 215-216). Officer Galvez corroborated that notice would be posted for a
clean-up, although he did not do it himself. Id at 216-17, 219; (Tr. vol. 3, 89) (homeless
individual testifying that "there were signs up saying that they were going to be cleaning.").
Almost all the homeless witnesses testified that they saw City workers take property. A
few testified that they personally witnessed either their own or other people's property being
seized. Several witnesses testified generally that they had witnessed City of M iami employees
throwing unattended property into trucks. (Tr. vol. 5, 18). For the most part , the testimony was
that property was kicked around, thrown into piles, and then loaded into trucks when the
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homeless were not present, even if they had left their belongings neatly by the side of the fence
or in a manner that did not obstruct the sidewalks. Id.; (Tr. vol. 3, 90). Some said they asked the
City for their property back, but that their requests were denied. Id. at 263-64. Plaintiffs testified
to losing small items, such as identifications, medicine, eye glasses, cellular phones, personal
notes from family members, and photographs. Id. at 52-57, 83, 90-91, 113, 263. Various
homeless persons, who lost their property, testified that they had left items in either a backpack,
bag, or suitcase and positioned them out of the way. Id. at 44, 193, 222. Some claim that police
and City workers did not allow homeless people to retrieve and save the property of another from
disposal during a clean-up operation. Id. at 76. For example, Eli Halter, a Marine veteran,
testified, if you were not there, your property went into a pickup truck. Id. at 76; (Tr. vol. 4, 18).
Robert Rhodes, however, testified that he was able to grab the belongings of his neighbor, who
slept next to him on the street and left shortly before the clean-up. (Tr. vol. 3, 15). Obviously,
there is no excuse for the taking of identification cards, medicine, eye glasses, cellular phones, or
photos, as they, by themselves, do not present a health hazard. The dilemma is what to do with
those items if they are commingled with backpacks, mattresses, sheets, food, etc. that clearly
pose health and security concerns. The solution to this dilemma is that these individuals should
never abandon their identifications, prescriptions, eye glasses, or phones that are so important.
Rather, they should keep those items with them when they are on the move.
Class representative, David Peery, testified as to an incident involving another witness,
Wilbur Cauley, which was partially recorded on a video. (Tr. vol. 5, 35-36); (PI. Exh. 578-40-A).
This incident occurred during a clean-up in the area of concern flagged by the Florida
Department of Health in Overtown. Mr. Cauley's property was up against a fence, neatly
bundled. Plaintiffs introduced a photograph of the property, which showed its position and
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Case 1:88-cv-02406-FAM Document 682 Entered on FL SD Docket 02/15/2019 Page 24 of 40
contents, including a personal bag. (Pl. Ex. 578-41-A). While Mr. Cauley went to a nearby store
and left his property, a City worker kicked his property and then moved it from its position
against the fence into a pile with other property. (Tr. vol. 3, 88-89); (PI. Ex. 578-40A). When Mr.
Cauley returned to the scene and saw his property in the pile, the City worker did not allow Mr.
Cauley to retrieve his property. Id. The Court agrees with the City's position that given the
"horror movie" conditions of squalor as described by Judge Leifman at this location, it would
have been eminently difficult to discern contaminated property from sanitary property in this
area.
C. Orders to Move
Plaintiffs focus on orders to homeless individuals to "move on" by members of the City
of Miami Police Department. The Court agrees with the City that orders to move during clean-up
operations are essential to the public welfare and do not violate Pottinger. The evidence that the
City roused the homeless from slumber in the early mornings did not indicate the City workers
intended to harass the homeless. Rather than harassment, the intent was to clear the areas where
the homeless spent the night before the arrival of vehicle and pedestrian traffic that is typical of
most cities. The Court finds the testimony of Dr. Suarez, who is not a City employee, credible as
to how he observed the City workers treat homeless individuals to achieve the goals of the large-
scale cleaning of public areas. (Tr. vol. 2, 109) ("I've never seen them do any of these types of
things they're being accused of. I've only seen them do it with dignity and respect. ... ").
Putting aside the clean-up operations, Plaintiffs also provided evidence of instances
where police ordered homeless individuals to move. The Court viewed a video taken by Java
Brooks, whom police asked to move from the area by the old Macy's in downtown Miami. (Pl.
Exh. 578-39). This incident is admittedly under investigation by the City of Miami Police
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Intern al A ffairs to determ ine if discipli ne is w arr anted. (T r. vol. 1, 88). R afa el V illalonga's
incident w as another, w here he w as asked to m ove from his area on Lot 16. V illa longa testified
that he com pli ed w ith the request. There is no evidence that he w as thr eatened w ith arr est. (Tr.
vol. 5, 8-9). G uthrie C hibanguza testifi ed that he w as ordered by the police to leave a bus stop,
and he w ent acro ss the street by a FedEx offi ce. (T r. vol. 3, 96). W ill ie R ichar dson testified that
police m ade him get up and m ove. (Tr. vol. 3, 101-102). Th e C onsent D ecree, how ever,
specifi call y pro hibited ar rests, and did not speci fically prevent offi cers fr om asking the hom eless
to tem poraril y relocate. Plaintiffs conceded at cl osing argum ent that the Consent D ecree does not
explicitl y prohib it offi cers fr om ordering hom eless individuals to m ove under certain
circum stances. Plaintiffs, how ever, argue the orders to m ove violated their constitutional rights
because the order w as m eant to disperse them fr om part icular locations. There w as no evidence
that upon return in g to a part icular location aft er m oving, or after a clean-up, that arrests w ere
m ade.
D. Arrests of Chetwyn Archer and Tabitha Bass
A t the heart of the Pottinger agreem ent is the crim inalization of hom elessness. To that
end, the C o nsent D ecree does not perm it City police to arrest hom eless individuals engaged in
life -sustain ing m isdem eanors w ithout offering them available shelter. Plaintiffs presented
evidence of tw o arr ests m ade sim ultaneously of Chetwy n A rcher and Tabitha B ass, neither of
w hom testifi ed in thi s evidentiar y hearing. Police arr ested the tw o individuals fo r the
m isdem eanor of obstru cting the sidew alk. (P I. Exh. 578-37, 578-38) (p ol ice identified a crack
pip e at the scene, but the ar rests did not appear to be drug-rel ated). Un d er the 2014 m odification
to the C onsent D ecree, "obstructing passage on sidew alks" is excepted fr om the list of "life
sustaining m isdem eanor conduct" if the entire sidew alk is obstru cted and the police has given the
25
Case 1:88-cv-02406-FAM Document 682 Entered on FLSD Dock et 02/15/2019 Page 26 of 40
individual a prior warning about the situation. The body camera of Officer C. Gonzalez captured
the arrests, however, the video did not show what transpired beforehand. The video begins as the
arrest of Chetwyn Archer is being initiated. The video shows a mattress obstructing the sidewalk
and no passageway for pedestrians. The individuals' belongings, including garbage bags, a
shopping cart filled with clothing and blankets, and a bicycle obstruct the passageway.
The issues for the Court in these proceedings are whether the City of Miami has
substantially complied with the purpose of the Consent Decree, such that federal oversight
should end, or whether the Plaintiffs have met their burden to show the City should be found in
civil contempt.
III. CONCLUSIONS OF LAW
District courts are empowered to modify or vacate consent decrees. Horne v. Flores, 557
U.S. 433, 447 (2009). The City argues that absent systemic violations of 42 U.S.C. § 1983 and in
light of policy and practice changes concerning the homeless, continued enforcement of the
Pollinger Consent Decree is inequitable. Plaintiffs argue the City continues to violate the terms
of the Decree.
A. Termination of the Consent Decree
A party seeking termination of a consent decree bears the burden to show "a significant
change in either factual conditions or the law." Rufo v. Inmates of Suffolk County Jail, 502 U.S.
367, 384 (1992) (relying on Fed. R. Civ. P. 60b)5)). Th e Supreme Court has acknowledged that
consent decrees "are not intended to operate in perp etuity" and can not condem n an agency to
"ju dicial tutelage fo r the indefi n ite fu ture." Bd. of Educ. of Oklahoma City Pub. Sch. v. Dowell,
498 U .S . 237, 249 (19 9 1) (school desegregation).
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To determine whether to term inate a consent decree, the Court must fir st look to the basic
purpose of the decree. United States v. City of Miami, 2 F.3d 1497, 1504 (11th Cir. 1993) ( citing
Dowell). Then, the Court must determ ine whether there is "substantial compliance." That means
the Court must determ ine whether the City of Miami has complied in good faith with the core
purpose of the decree, whether the purposes of the litigation have, to the extent practical, been
achieved, and whether it is necessary or sensible, under current circumstances, for the Court to
continue to exercise judicial oversight. Id., 2 F.3d at 1508 ( consent decree addressed under-
representation of women and minorities in City's workforce).
The Eleventh Circuit provided additional guidance when it stated that district courts
should terminate consent decrees when the system had "undergone radical changes and was on
secure footing to continue its progress in the years to come, without court supervision,"
notwithstanding the fact that the system is "not yet perfect and may never be." R. C. v. Walley,
270 F. Ap p'x 989, 992 (11th Cir. 2008). In so doing, this Court may rely on the state's "history
of good faith and its present comm itment to remedying remaining problems." Id. "Federal courts
should not be in the business of running important functions of state government for decades at a
time." Id. (quoting Reynolds v. Mcinnes, 338 F.3d 1201, 1219 (11th Cir. 2003)). If this Court
determines that the City has implemented a durable remedy, continued enforcement is improper.
Horne, 557 U.S. at 450 (stating that federal court decrees exceed appropriate limits if they are
aimed at eliminating a condition that does not violate federal law).
Federalism concerns also exist in institutional reform litigation, such as this, where core
areas of state responsibility are involved. Horne, 557 U.S. at 448. The Supreme Court has
acknowledged that "injunctions issued in such cases often remain in force for man y years, and
the passage of time frequently brings about changed circumstances . . . that warrant
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reexamination of the original judgment." Id. at 447-48. The Supreme Court has also noted that
"the dynamics of institutional reform litigation differ from those of other cases," where, "public
officials sometimes consent to, or refrain from vigorously opposing, decrees that go well beyond
what is required by federal law." Id. "Injunctions of this sort bind state and local officials to the
policy preferences of their predecessors and may thereby improperly deprive future officials of
their designated legislative and executive powers." Id. at 449.
It is well beyond dispute that there have been changed circumstances since the start of
Pottinger. As detailed, supra, changes in police work, technology, and most importantly the
implementation of a dedicated source of funding to the tune of $60 million dollars a year to aid
the homeless in this community sufficiently establish that the conditions in place when Pottinger
was filed 30 years ago, and even when the Consent Decree was entered in 1998, are no longer
the case. The evidence showed that the continuum of care available to homeless individuals in
Miami-Dade County is unparalleled in the United States. And, the numbers prove it. The amount
of homeless individuals in Miami has plummeted 90% since Pottinger was entered. The number
of arrests has also decreased as explained by Judge Leifman.
The dispute in this case centers on whether the City has substantially complied with the
core purpose of the Pottinger Agreement, and the Plaintiffs claim that the City has not due to its
actions in cleaning up homeless encampments starting in 2018.14 There is no question after
hearing the testimony and viewing the video evidence that the City was compelled by the gravity
of the unsanitary and unhygienic conditions to literally clean the streets for the betterment of the
common welfare, including the homeless, the City's residents, and its businesses.
l. Substantial Compliance by the Police Department
plaintiffs have not previously file d a motion to enforce the agreement or to hold the City in contempt. Plaintiffs'
counsel likened the situation to a probation violation that occurs after sometime, but is still punishable.
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There can be no doubt that the core purpose of Pottinger was to stop the criminalization
of homelessness. The primary goal of this litigation and the Consent Decree was to prohibit the
City of Miami Police Department from arresting homeless individuals for engaging in life-
sustaining conduct misdemeanors.15 Because Pottinger prohibited arrest as a solution to get the
homeless off the streets, the City and the community, at large, developed a myriad of programs
that City Police could tap into when interacting with the homeless. The County's Homeless
Trust, the recipient of $60 million in tax revenue a year, provides funding and Camillus House,
the Chapman Partnership, and Lotus House provide shelter, medical care, and other services to
the homeless in our community. The state court system, through Judge Leifman, developed
diversion programs to avoid putting the mentally ill in jails. The whole system, described supra,
and known as the continuum of care has provided an outstanding support network for the City
police and other outreach workers. There can be no doubt that the primary purpose of the
agreement, to stop the arrests of the homeless for being homeless, has been achieved. The Court
finds that the continuum of care is exactly the type of durable remedy that requires this Court to
cease its oversight of these primarily state functions. This is not to say that more cannot be done
to achieve the goal of eradicating homelessness. The goal of the Consent Decree, however, was
not to solve homelessness. Rather, the goal of the Consent Decree was to reform the manner that
City Police treated the homeless. That goal has been achieved to the credit of all the individuals,
particularly in this litigation.
' In fact, the class certified by Judge Atkins includes "homeless persons... who have been, expect to be, or will be
arrested, harassed, or otherwise interfered with by members of the City of Miami Police Department for engaging in
the ordinary and essential activities of daily living in public due to the lack of other adequate alternatives." Pottinger
v. City of Miami, 720 F. Supp. 955, 959 (S.O. Fla. 1989). The Consent Decree focuses almost entirely on the
implementation of training, policies and procedures to ensure that the police department engaged with the homeless
population in a humane manner and within the bounds of the constitution. (Def. Exh. 1).
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Plaintiffs' evidence, in this case, of two arrests that purportedly violated Pottinger is
insufficient to convince this Court that a durable remedy is not in place. The overwhelming
evidence supports the finding that City police will not revert to arresting individuals, because
they have an ample support network to turn to in handling difficult situations. (Testimony of
Ronald L. Book) (Tr. vol. 2, 18) ("[TJhe City clearly understands the need to treat the homeless
population with respect and with dignity and with a desire to put a permanent end to it and that is
our goal and l think that's our joint goal. J don't see that changing should Pottinger be
discontinued.").
The evidence also showed that for those chronically homeless individuals, Pottinger,
serves as a crutch enabling them to avoid entering the continuum of care. The video of Java
Brooks was emblematic of this where she basically flaunted the City police, who ordered her to
move, when she said she was aware of her rights. She showed little incentive to try to get off the
streets. The testimony of Ronald Book, Chairman of the Homeless Trust, exemplified this point,
when he was discussing the chronically homeless population. He said the chronically homeless
are "shelter resistant ... if you make it easier for them to be on the streets, they' re not coming in.
It's why we don't support street feedings. It's why we don't support panhandling. I believe
Pottinger at this point, my opinion, is that continuation doesn't make it easier for us, it makes it
harder for us to finish what's out there because it's chronic." Id. at 17. Likewise, Pottinger has a
chilling effect on an officer's ability to provide aid to the homeless. Dr. Suarez said it best, when
he said "it's just sad to see that we're still stuck in the past and I see the officers are handcuffed
by this. And I think that might be why subconsciously J brought up that young officer saying
'I'm going to be on YouTube by the end of the day.' I think that's Pottinger ... getting in her
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way of doing the right thing because she is afraid fo r herself, an d I can't blam e her fo r that." (Tr.
vol. 2, 116).
Not only has the City substantially com plied with the main purp ose of Pottinger
regarding arrests, the City Police Departm ent has im plem ented the required tra ining as set forth
in section IV of the Consent Decree, which nowadays includes scenario based training. (Def.
Exh. 95, 95A). The City also com plies with its departm ental orders and police offi cers, who fail
to com ply, are subject to investigation by Intern al Affairs an d discipline. The Depart m ental
Order is m odeled after the pro tocol in Section VII of the settlem ent agreem ent.
The Departm ental Order also contains specific directives as to how the police should
handle pro perty. W hile the Plaintiffs' evidence regar ding the loss of pro perty during clean-ups
often reflected a police presence, there was no evidence that an y City of M iam i police destro yed
or seized pro perty and there are no intern al affairs investigations on the record in this regar d.
Finally, the police im plem ented a system to docum ent interactions with the homeless
known as Field Info rm ation Cards, which are used in cases where there is no arrest. Those fo rm s
are maintained by the police as required by Section VIII of the Settlem ent Agreem ent.
Technology has certainly rendered this requirem ent obsolete.
The question that rem ains is whether the evidence of police ordering hom eless
individuals to m ove negates a finding a substantial com pliance. Java Brooks and Rafael
Villalonga testified that the City Police told them to move from where they were staying at night,
without cause an d without offering shelter. Likewise, Guthr ie Chibanguza testified that he was
asked to leave a bus stop, even though he had a bus pass, and he walked across the street. Willie
Ri chardson testified that police also ordered him to m ove. Plaintiffs cite City of Chicago v.
Morales, 527 U.S. 41 (1 999) to argue that the directive to move violates the hom eless person's
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fundamental right to travel. In City of Chicago, the Supreme Court held that an ordinance
violates the due process clause of the Fourteenth Amendment where it prohibited street gang
members from loitering in a public place. To enforce the ordinance, the officers could order the
gang members to disperse, and a failure to comply would be grounds for arrest. Id., 527 U .S. at
50. The Supreme Court found the ordinance unconstitutionally vague as to what conduct was
proscribed. Id. at 53. In so holding, the Supreme Court stated that "freedom to loiter for innocent
purposes is part of the 'liberty' protected by the Due Process Clause of the Fourteenth
Amendment." Id.
Plaintiffs, however, do not lose their constitutional rights by termination of the Consent
Decree. It bears noting that no other municipality in Miami-Dade County's 34 is subject to the
Pottinger Agreement except for the City of Miami. And, individuals in Miami-Dade County are
not gaining greater constitutional protections when they cross from Miami Beach into Miami.
The issue here is whether there has been substantial compliance with the tenets of the Consent
Decree. The basic tenets of the Consent Decree prohibit "arrest or detention" of homeless
individuals not engaged in any criminal activity. Neither took place here. The Court does not
find the evidence of these four instances where individuals were ordered to move negates a
finding of substantial compliance. Substantial compliance "impl[ies] something less than a strict
and literal compliance with the contract provisions but fundamentally it means that the deviation
is unintentional and so minor or trivial as not 'substantially to defeat the object which the parties
intend to accomplish."' Wells Benz, Inc. v. US. for Use of Mercury Elec. Co., 333 F.2d 89, 92
(9th Cir. 1964) (citations omitted). The alleged actions of a few police officers do not constitute
the type of deviation necessary to find a lack of substantial compliance, especially where there is
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no evidence of arrest an d the circum stances under which the police issued the directives to move
are unclear.16
2. Substa ntial Compliance by other City Departments
This institutional refo rm litigation sought to revam p police interactions with the City's
hom eless population. Its effects, however, are seen thro ughout the City of M iam i's govern ment
departm ents. There are three sentences in the Settlem ent Agreem ent that address property of
hom eless individuals and are written so as to encom pass other City departm ents, in addition to
the police. That provision, supra, requires City departm ents to respect the property of the
hom eless and to follow their own intern al pro cedures fo r taking custody of pro perty, It also
pro hibits city dep artm ents from destro ying pro perty except as allowed by law, or where the
pro perty is contam inated or poses a health risk. (Def. Exh. 1 at 12-13). Pl ai ntiffs argue that the
City's failure to have wr itten pro cedures equates with noncom plian ce. The agreem ent, however,
functioned for twenty years without incident an d at no tim e did the Plaintiffs com plain about a
lack of written procedures. The testim ony from the City outreach m an agers, Sergio Torres an d
David Rosem ond, was consistent on the procedures the City workers em ploy to determ ine when
and how to tak e pro perty. The testim ony also showed that the Departm ent of Vetera ns Affairs
and Hom eless Services, now the Depart m ent of Hum an Serv ices, tra ins the other relevant City
departm ents, such as the Parks and Recreation Departm ent, on the procedures. (Def. Ex. 39).
W ith respect to section VII(F) of the Consent Decree, the Court finds the City in substantial
com pliance.
Plaintiffs presented testimony of m any hom eless individuals regarding the taking of
pro perty during the 2018 clean-up opera tions that took place in Down town M iam i and
Indeed, Ch ief Colina testified that the City was investigating the instance with Java Brooks to determine whether
the City would discipline the police officer for his actions.
33
Case 1:88-cv-02406-FAM Documen t 682 Entered on FLSD Dock et 02/15/2019 Page 34 of 40
Overtown. There is no question that the City exercised a valid governmental power in addressing
the sanitation and public health concerns created by the large encampments of homeless
congregating and living in certain areas of the City. Plaintiffs argue the City's actions during
those clean-ups negate a finding of substantial compliance.
The City presented ample evidence that notice was given in advance of the clean-ups and
that shelter beds were secured to move people from those areas into the continuum of care. The
City's evidence was corroborated by Dr. Suarez and Hilda Fernandez, who both testified
regarding their joint efforts and work with the City in performing the clean-ups. The testimony of
the homeless witnesses was that if they left their belongings unattended, they were gone when
they returned. Some witnesses testified that they asked the City workers to recover their
belongings, but were denied those requests. Other witnesses, such as Robert Rhodes, testified
that he was able to grab his neighbor's belongings during a clean-up. One witness, Eli Halter,
testified that if you were at the clean-up, you had the ability to move your stuff. (Tr. vol. 3, 76).
This testimony is consistent with the information provided by Dr. Suarez, Sergio Torres, and
David Rosemond regarding clean-up operations.
Plaintiffs emphasize that the incident involving Wilbur Cauley's property shows the
City's noncompliance with the Consent Decree. The incident described by Wilbur Cauley and
David Peery, and shown in a video (D.E. 578-40-A), took place in the area in Overtown
underneath the I-395 overpass. Judge Leifman described that area saying "[i]t was dangerous to
put anything on the ground. You had to step around the needles and the rats that were all over the
place." (Tr. vol. 4, 34). The evidence showed the unsanitary conditions in that location, and it is
not difficult to extrapolate the potential consequences to the public health, which would lead a
City worker to discard more property than not, because he believed it to be contaminated. The
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squalor present prevented the clean-ups from being easy operations where the City workers
could examine items one by one. Unfortunately, some medications, identifications, and personal
notes were necessarily discarded in the process and the Court sympathizes with that loss, but the
Court cannot ignore that those items were commingled with food, soiled materials, and garbage
creating a public health crisis. The Court noted that the bicycles present were not discarded,
presumably because a bicycle does not pose a health or safety risk. The testimony of Ronald L.
Book exemplifies the contents of the evidence. He said: "Nobody is ever going to accuse me of
being anything other than compassionate and understanding as it relates to the plight of those
who live on our streets, but oftentimes you end up in situations where there's been hoarding and
it's more garbage than it is property of value." (Tr. vol. 2, 21). Therefore, the Court concludes
the City has substantially complied with the Consent Decree's property provisions, even though
there were instances during the clean-ups where City workers mistakenly discarded valuable
items due to the gravity of the unsanitary conditions.
B . Motion for C on tempt
Injunctions, such as Consent Decrees, are enforced through the civil contempt power of
the trial court. R eynolds v. G.M. R oberts, 207 F.3d 1288, 1298 (11th Cir. 2000). Plaintiffs bear
the burden of proving by clear and convincing evidence that the City violated the P ottinger
Consent Decree. See Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1296 (11th Cir. 2002) ("A
finding of civil contempt wi llful disregard of the authority of the court must be supported by
clear and convincing evidence."). To establish that a party acted in contempt, the party seeking
the contempt ruling must show by clear and convincing evidence that: (l ) the allegedly violated
order was valid and lawful, (2) the order was clear and unambiguous, and (3) the alleged violator
had the ability to comply with the order. Id.; Wyatt v. R og ers, 92 F.3d 1074, 1078 n.8 (11th Cir.
35
C a se 1:8 8 -cv -0 2 4 0 6 -F AM D o cum en t 68 2 E nte re d on F L S D D o cket 02/15 /20 1 9 Pa ge 36 of 40
1996). If the Plaintiffs do so, the burden shifts to the Defendant to show that it has complied with
the injunction, or why it should not be adjudged in contempt. Reynolds, 207 F.3d at 1298.
Plaintiffs presented evidence of three different types of alleged violations to validate a
finding of contempt. The first group is the directives from police to homeless individuals to
move. The second group is evidence relating to the taking of personal property by City workers
during clean-up operations in 2018. The last is the arrests of the two individuals for obstructing
the sidewalk.
Although the Consent Decree contains a general requirement that City police not harass
the homeless, the Consent Decree and Police Departmental Order 11 do not explicitly prohibit
the police from ordering homeless persons to move from their locations or from sounding loud
noises to wake people before a clean-up operation. It goes without saying that directives to
move during a clean-up operation are essential to facilitate the pressure washing of the
sidewalks. Pressure cleaning, while individuals are sleeping on the sidewalks, is obviously
hazardous to their safety. And, not cleaning poses health hazards to them and others. During the
clean-up operations, the evidence showed that homeless individuals often moved close by or
I
were offered shelter. Dr. Suarez testified that the team engages any homeless individual at the
clean-up location, helps them to discard any garbage that has accumulated around them, offers
them clean clothes and blankets. (Tr. vol. 2, 104). The team then offers shelter placement and, if
the offer for shelter is rejected, the team members ask the homeless person to relocate
temporarily. Id. The City has an interest in preserving the public welfare, hygiene and sanitation.
It makes sense and the evidence confirmed that the City's intent was to move these homeless
individuals, living in squalor and in encampments, into the continuum of care. The Court does
not view the City's actions, in this regard, to be a concerted plan to violate the homeless civil
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C a s e 1:8 8-cv-02406-FAM D ocum ent 682 Entered on FLS D D ocket 02/15/2019 P age 37 of 40
rights. And, there is no clear and convincing evidence that requiring the homeless to move
during clean-up operations was a violation of the Decree, especially because the evidence
showed that people returned to the locations after the clean-ups and no one was arrested.
As noted, supra, the Plaintiffs argue there are four instances, outside of a clean-up
operation, where the police were harassing homeless individuals and ordering them to move,
Java Brooks, Rafael Villalonga, Guthrie Chibanguza, and Willie Richardson. Other than the
general prohibition on harassment contained in Consent Decree, there is nothing in the Consent
Decree or in the Police Departmental Order 11 specifically precluding a police officer from
instructing someone to move. Moreover, the testimony from the witnesses and the video
evidence did not show the underlying circumstances under which the officers issued the
directives. To find civil contempt, the Court must find by clear and convincing evidence that the
Pottinger Agreement clearly and unambiguously said that officers could not ask homeless
individuals to move or the evidence must show that. the police officers were harassing these
individuals. The evidence does not establish a violation of the Decree's general statement that
the police not harass the homeless. Therefore, the standard for civil contempt is not met.
The Plaintiffs also seek to hold the City in contempt due to their handling of homeless
individuals' personal property. Again, the Pottinger Agreement allows officers and City workers
to take unattended property in accordance with their internal procedures and discard property
that is contaminated. The Consent Decree also contains a general requirement that City police
and outreach workers treat the property of the homeless with respect.
The majority of Plaintiffs' witnesses complained about the handling of property during
clean-up operations. Witnesses testified that workers moved in quickly and that they had little
time to collect their belongings. Homeless individuals testified that they left items in backpacks,
37
C a s e 1:88-cv-02406-FA M D ocum ent 682 E ntered on FLSD Docke t 02/15/2019 P age 38 of 40
bags, and positioned out of the way and that their property was kicked around, thrown into piles,
and then loaded into trucks to be disposed. Plaintiffs' witnesses also testified that City workers
routinely did not allow homeless persons to retrieve and save the property of another homeless
person from disposal. But, it would be unreasonable for City workers to decide their course of
action based on a non-owner's statement regarding abandoned property. The evidence also
showed that City workers complied with their procedures, gave notice ahead of time, provided
outreach to affected individuals, gave homeless persons bags to put away their belongings, and
left notes at the scene on the fences to let people know the location of property. Some of
Plaintiffs' own witnesses testified that they were able to keep the property on them, and retrieve
property belonging to others. The evidence also showed the gravity of the circumstances at these
clean-up spots, which has already been detailed in this order. Even assuming that, at times, the
City workers could have handled the homeless person's belongings more delicately, the Court
does not find that a violation of the Consent Decree occurred by clear and convincing evidence.
The Consent Decree allows the City workers to take property in a manner consistent with their
procedures. The evidence showed that, at least for the most part, that was done, and to discard
contaminated property. Deciphering what is and is not contaminated inside a bag is difficult and
going through a bag that possesses contaminated materials to fish out identifications and
medications is not a requirement of the Consent Decree. The evidence did not show an officer or
a worker taking away identifications and medications, rather it showed that those items were
unfortunately lost as part of a process of cleaning areas in desperate need of sanitation. The
Court does not hold the City in contempt for its handling of the personal belongings.
Finally, the Court, for reasons already detailed in this Order, does not find the two arrests
are sufficient to meet the standard that the City violated the decree and should be held in
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contem p t. T here is no ev idence as to w hat preceded the arr ests, and as such, the stan dard fo r
contem pt is not m et.
H eroes fo r the H om eless
A lthough th e P lain tiffs have opposed th e term in ation of this agreem ent, in a very real
sense, they are the victors. T heir law suit, an d the w ork of their excellent and capable counsel,
under the guid ance of the A m erican s C ivil L ibert ies U nion and the Florida Justice Institute,
engendered a revolution in this com m unity as to the treatm ent and car e of persons experiencing
hom elessness. T w enty years ago, the undersigned could not have predicted the m yriad of
serv ices m ade possib le by the effort s of the H om eless T ru st and M r. R onald L. Book. The Court
could not have envisioned the dedication of people, like D r. Pedro Joe G reer and D r. E dw ard
Suar ez, w ho have tak en m edicine to the streets of M iam i to help people and gain their tru st to
im pro ve their car e. T he li fe tim e of w ork by C am illus C E O H ilda Fern andez is com m endable as
she has w orked in a variety of ro les to assist the hom eless and bett er their lives in a tru ly
com p assionate w ay. T he w ork of C onstance C o lli n s at the L otus H ou se has also contributed to
aidin g hom eless w om en and child ren an d helped them fi nd solution s to hom elessness. It goes
w ithout sayin g that this co m m unity ow es a debt of gratitude to Jud ge Steve Leifm an, w ho has
im p lem ented sustainable pro gram s to help the m entall y ill, w hich w ill continue to im pro ve their
circum stances. Sim p ly put, Judge A tkins w ould be proud of the resu lts. A ccordingly, it is
A D JU D G E D that the C ourt term in ates the C onsent D ecree an d denies the m otion to hold
the C ity of M iam i in contem pt.
D O N E A N D O RD E R E D in C h am bers at M iam i, Fl orid a, this
7
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Copies fu rn ished to:
Counsel of Record
40